Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-31092 February 27, 1987
COMMISSIONER OF INTERNAL REVENUE, petitioner,
vs.
JOHN GOTAMCO & SONS, INC. and THE COURT OF TAX APPEALS, respondents.

YAP, J.:
The question involved in this petition is whether respondent John Gotamco & Sons, Inc.
should pay the 3% contractor's tax under Section 191 of the National Internal Revenue
Code on the gross receipts it realized from the construction of the World Health
Organization office building in Manila.
The World Health Organization (WHO for short) is an international organization which has
a regional office in Manila. As an international organization, it enjoys privileges and
immunities which are defined more specifically in the Host Agreement entered into
between the Republic of the Philippines and the said Organization on July 22, 1951.
Section 11 of that Agreement provides, inter alia, that "the Organization, its assets,
income and other properties shall be: (a) exempt from all direct and indirect taxes. It is
understood, however, that the Organization will not claim exemption from taxes which are,
in fact, no more than charges for public utility services; . . .
When the WHO decided to construct a building to house its own offices, as well as the
other United Nations offices stationed in Manila, it entered into a further agreement with
the Govermment of the Republic of the Philippines on November 26, 1957. This agreement
contained the following provision (Article III, paragraph 2):
The Organization may import into the country materials and fixtures
required for the construction free from all duties and taxes and agrees not
to utilize any portion of the international reserves of the Government.
Article VIII of the above-mentioned agreement referred to the Host Agreement
concluded on July 22, 1951 which granted the Organization exemption from all direct and
indirect taxes.

In inviting bids for the construction of the building, the WHO informed the bidders that
the building to be constructed belonged to an international organization with diplomatic
status and thus exempt from the payment of all fees, licenses, and taxes, and that
therefore their bids "must take this into account and should not include items for such
taxes, licenses and other payments to Government agencies."
The construction contract was awarded to respondent John Gotamco & Sons, Inc.
(Gotamco for short) on February 10, 1958 for the stipulated price of P370,000.00, but
when the building was completed the price reached a total of P452,544.00.
Sometime in May 1958, the WHO received an opinion from the Commissioner of the Bureau
of Internal Revenue stating that "as the 3% contractor's tax is an indirect tax on the
assets and income of the Organization, the gross receipts derived by contractors from
their contracts with the WHO for the construction of its new building, are exempt from
tax in accordance with . . . the Host Agreement." Subsequently, however, on June 3, 1958,
the Commissioner of Internal Revenue reversed his opinion and stated that "as the 3%
contractor's tax is not a direct nor an indirect tax on the WHO, but a tax that is primarily
due from the contractor, the same is not covered by . . . the Host Agreement."
On January 2, 1960, the WHO issued a certification state 91 inter alia,:
When the request for bids for the construction of the World Health
Organization office building was called for, contractors were informed that
there would be no taxes or fees levied upon them for their work in
connection with the construction of the building as this will be considered an
indirect tax to the Organization caused by the increase of the contractor's
bid in order to cover these taxes. This was upheld by the Bureau of Internal
Revenue and it can be stated that the contractors submitted their bids in
good faith with the exemption in mind.
The undersigned, therefore, certifies that the bid of John Gotamco & Sons,
made under the condition stated above, should be exempted from any taxes
in connection with the construction of the World Health Organization office
building.
On January 17, 1961, the Commissioner of Internal Revenue sent a letter of demand to
Gotamco demanding payment of P 16,970.40, representing the 3% contractor's tax plus
surcharges on the gross receipts it received from the WHO in the construction of the
latter's building.
Respondent Gotamco appealed the Commissioner's decision to the Court of Tax Appeals,
which after trial rendered a decision, in favor of Gotamco and reversed the

Commissioner's decision. The Court of Tax Appeal's decision is now before us for review
on certiorari.
In his first assignment of error, petitioner questions the entitlement of the WHO to tax
exemption, contending that the Host Agreement is null and void, not having been ratified
by the Philippine Senate as required by the Constitution. We find no merit in this
contention. While treaties are required to be ratified by the Senate under the
Constitution, less formal types of international agreements may be entered into by the
Chief Executive and become binding without the concurrence of the legislative body.

The

Host Agreement comes within the latter category; it is a valid and binding international
agreement even without the concurrence of the Philippine Senate.
The privileges and immunities granted to the WHO under the Host Agreement have been
recognized by this Court as legally binding on Philippine authorities.

Petitioner maintains that even assuming that the Host Agreement granting tax exemption
to the WHO is valid and enforceable, the 3% contractor's tax assessed on Gotamco is not
an "indirect tax" within its purview. Petitioner's position is that the contractor's tax "is in
the nature of an excise tax which is a charge imposed upon the performance of an act, the
enjoyment of a privilege or the engaging in an occupation. . . It is a tax due primarily and
directly on the contractor, not on the owner of the building. Since this tax has no bearing
upon the WHO, it cannot be deemed an indirect taxation upon it."
We agree with the Court of Tax Appeals in rejecting this contention of the petitioner.
Said the respondent court:
In context, direct taxes are those that are demanded from the very person
who, it is intended or desired, should pay them; while indirect taxes are
those that are demanded in the first instance from one person in the
expectation and intention that he can shift the burden to someone else.
(Pollock vs. Farmers, L & T Co., 1957 US 429, 15 S. Ct. 673, 39 Law. Ed. 759.)
The contractor's tax is of course payable by the contractor but in the last
analysis it is the owner of the building that shoulders the burden of the tax
because the same is shifted by the contractor to the owner as a matter of
self-preservation. Thus, it is an indirect tax. And it is an indirect tax on the
WHO because, although it is payable by the petitioner, the latter can shift
its burden on the WHO. In the last analysis it is the WHO that will pay the
tax indirectly through the contractor and it certainly cannot be said that
'this tax has no bearing upon the World Health Organization.
Petitioner claims that under the authority of the Philippine Acetylene Company versus
Commissioner of Internal Revenue, et al.,

the 3% contractor's tax fans directly on

Gotamco and cannot be shifted to the WHO. The Court of Tax Appeals, however, held that

the said case is not controlling in this case, since the Host Agreement specifically exempts
the WHO from "indirect taxes." We agree. The Philippine Acetylene case involved a tax on
sales of goods which under the law had to be paid by the manufacturer or producer; the
fact that the manufacturer or producer might have added the amount of the tax to the
price of the goods did not make the sales tax "a tax on the purchaser." The Court held
that the sales tax must be paid by the manufacturer or producer even if the sale is made
to tax-exempt entities like the National Power Corporation, an agency of the Philippine
Government, and to the Voice of America, an agency of the United States Government.
The Host Agreement, in specifically exempting the WHO from "indirect taxes,"
contemplates taxes which, although not imposed upon or paid by the Organization directly,
form part of the price paid or to be paid by it. This is made clear in Section 12 of the Host
Agreement which provides:
While the Organization will not, as a general rule, in the case of minor
purchases, claim exemption from excise duties, and from taxes on the sale
of movable and immovable property which form part of the price to be paid,
nevertheless, when the Organization is making important purchases for
official use of property on which such duties and taxes have been charged or
are chargeable the Government of the Republic of the Philippines shall make
appropriate administrative arrangements for the remission or return of the

amount of duty or tax. (Emphasis supplied).

The above-quoted provision, although referring only to purchases made by the WHO,
elucidates the clear intention of the Agreement to exempt the WHO from "indirect"
taxation.
The certification issued by the WHO, dated January 20, 1960, sought exemption of the
contractor, Gotamco, from any taxes in connection with the construction of the WHO
office building. The 3% contractor's tax would be within this category and should be
viewed as a form of an "indirect tax" On the Organization, as the payment thereof or its
inclusion in the bid price would have meant an increase in the construction cost of the
building.
Accordingly, finding no reversible error committed by the respondent Court of Tax
Appeals, the appealed decision is hereby affirmed.
SO ORDERED.